In State v. Johnson, the WA Court of Appeals held that a “seizure” of a person occurs when an officer’s words and action would have conveyed to an innocent person that his or movements are being restricted. Officers need not create a complete obstruction of an individual’s movements in order for the encounter to become a seizure.

BACKGROUND FACTS

Officer Yates and Officer George of the Lynnwood Police Department were engaged in a proactive patrol late at night in an area known to have a high rate of criminal activity. The officers observed a silver vehicle enter a motel parking lot and park in a stall. After the vehicle came to rest, about a minute and a half passed without any person entering or leaving the vehicle. The officers became suspicious that its occupants were using drugs.

The officers, both of whom were armed and in uniform, approached the vehicle on foot and stood on opposite sides adjacent to the driver’s and passenger’s doors. They shined flashlights into the vehicle’s interior to enable them to see the vehicle’s occupants and ensure that neither was holding anything that could put the officers in danger. Because the vehicle was also flanked on both sides by cars parked in adjoining stalls, the officers had minimal space to move.

Officer Yates did not see any drugs or drug paraphernalia when he shined his flashlight inside the passenger compartment. Inside were the defendant Mr. Johnson and a female passenger.

Officer Yates stood on the passenger side while Officer George stood adjacent to the driver’s door. Yates sought to start a conversation with Johnson, who was in the driver’s seat, and did so by asking, “Hey, is this Taylor’s vehicle?” In fact, there was no “Taylor”; the ruse was intended to make Johnson feel more comfortable, in the hope that he would talk with the officer. Johnson appeared confused by the question, and Yates asked, again, whether the vehicle was “Taylor Smith’s vehicle.” In response, Johnson stated that the vehicle was his own and that he had recently purchased it.

Meanwhile, Officer George, who was leaning over the driver’s side door, noticed a handgun placed between the driver’s seat and the door.

George alerted Yates to the presence of the firearm, drew his own handgun, opened the driver’s door and removed the weapon from Johnson’s vehicle. Subsequently, Johnson was removed from the vehicle. Meanwhile, police dispatch informed the officers that Johnson’s driver’s license was suspended in the third degree, and that he had an outstanding arrest warrant and a felony conviction. The officers then informed Johnson that he was being detained but not placed under arrest and advised him of his Miranda rights.

Before trial, Johnson moved to suppress the evidence of the gun found in his possession, contending that it was found attendant to his unlawful seizure. After an evidentiary hearing, the trial court granted Johnson’s motion. However, the judge did not make a determination as to whether Johnson was seized prior to the discovery and removal of the firearm, instead ruling that the encounter was a “social contact” and that “law enforcement had an insufficient basis to initiate a social contact.” The trial court further acknowledged that granting the motion to suppress essentially terminated the State’s case. The State appeals from the order granting Johnson’s motion.

COURT’S ANALYSIS & CONCLUSIONS

“In a constitutional sense, the term “social contact” is meaningless. The term has been adopted by lawyers and judges to describe circumstances that do
not amount to a seizure.”

The Court of Appeals further reasoned that term has been adopted by lawyers and judges to describe circumstances that do not amount to a seizure. It explained, for example, that a social contact is said to rest someplace between an officer’s saying ‘hello’ to a stranger on the street and, at the other end of the spectrum, an investigative detention (i.e., Terry stop).

“Fortunately, seizure jurisprudence is well-developed,” said the Court. It said the WA Constitution does not forbid social contacts between police and citizens. A police officer’s conduct in engaging a defendant in conversation in a public place and asking for
identification does not, alone, raise the encounter to an investigative detention. Not
every encounter between a police officer and a citizen is an intrusion requiring an
objective justification. Thus, the police are permitted to engage persons in conversation and ask for identification even in the absence of an articulable suspicion of wrongdoing.

“However, officers need not create a complete obstruction of an individual’s movements in order for the encounter to become a seizure. The test is whether a reasonable person faced with similar circumstances would feel free to leave or otherwise terminate the encounter.”

The Court of Appeals held the search and seizure unlawful. In the instant case, the defendant was seized when officers asked for proof of his identity under a totality of the circumstances analysis as (1) the defendant was seated in a parked car that was flanked by cars parked in each of the adjoining spaces when the two uniformed officers stood adjacent to the vehicle’s doors, such that neither the defendant nor his passenger would have been able to open the doors and walk away from the vehicle without the officers moving or giving way; (2) the defendant could not move his vehicle in reverse without risking his car making contact with one or both of the officers and a barrier prevented the vehicle from pulling forward, (3) the officers illuminated the interior of the vehicle with flashlights, and (4) the officers used a ruse to begin the contact, asking “Is this Taylor’s car?” (5) when the officers approached the vehicle and initiated a conversation with Johnson, they saw him seated with a female passenger and neither officer observed any signs of drug use, (6) Johnson was cooperative with Officer Yates and answered his questions, and (7) beyond the aforementioned hunch, the officers were aware of nothing that constituted a reasonable, articulable suspicion of potential criminal activity.

With that, the Court of Appeals held that the trial court did not err in granting
Johnson’s motion to suppress evidence of the subsequently discovered firearm.

My opinion? Good decision. Please contact my office if you a friend or family member are arrested for a crime and believe an unlawful search or seizure happened. Hiring an experienced defense attorney is the first and best step toward justice.

In State v. Tarango, the WA Court of Appeals held that the presence of a firearm in public and the presence of an individual openly carrying a handgun in a “high-risk setting,” are insufficient, standing alone, to support an investigatory stop.

BACKGROUND FACTS

At around 2:00 in the afternoon on a winter day in 2016, Mr. Matthews drove to a neighborhood grocery store in Spokane, parking his car next to a Chevrolet Suburban in which music was playing loudly. A man was sitting in the passenger seat of the Suburban, next to its female driver. When Mr. Matthews stepped out of his car and got a better look at the passenger, who later turned out to be the defendant Mr. Tarango, he noticed that Mr. Tarango was holding a gun in his right hand, resting it on his thigh. Mr. Matthews would later describe it as a semiautomatic, Glock-style gun.

As he headed into the store, Mr. Matthews called 911 to report what he had seen, providing the 911 operator with his name and telephone number. The first officer to respond saw a vehicle meeting Mr. Matthews’s description parked on the east side of the store. He called in the license plate number and waited for backup to arrive. Before other officers could arrive, however, the Suburban left the parking area, traveling west.

The Suburban was followed by an officer and once several other officers reached the vicinity, they conducted a felony stop. According to one of the officers, the driver, Lacey Hutchinson, claimed to be the vehicle’s owner. When told why she had been pulled over, she denied having firearms in the vehicle and gave consent to search it.

After officers obtained Mr. Tarango’s identification, however, they realized he was under Department of Corrections (DOC) supervision and decided to call DOC officers to perform the search.

In searching the area within reach of where Mr. Tarango had been seated, a DOC officer observed what appeared to be the grip of a firearm located behind the passenger seat, covered by a canvas bag. When the officer moved the bag to get a better view of the visible firearm—the visible firearm turned out to be a black semiautomatic—a second firearm, a revolver, fell out. Moving the bag also revealed a couple of boxes of ammunition. At that point, officers decided to terminate the search, seal the vehicle, and obtain a search warrant. A loaded Glock Model 22 and a Colt Frontier Scout revolver were recovered when the vehicle was later searched.

Before trial, Mr. Tarango moved to suppress evidence obtained as a result of the traffic stop, arguing that police lacked reasonable suspicion of criminal activity. However, the trial court denied the suppression motion. Later, at trial, the jury found Mr. Tarango guilty as charged. He appealed.

ISSUE

The issue on appeal was whether a reliable informant’s tip that Mr. Tarango was seen openly holding a handgun while seated in a vehicle in a grocery store parking lot was a sufficient basis, without more, for conducting a Terry stop of the vehicle after it left the lot.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals held that Mr. Tarango’s motion to suppress should have been granted because officers lacked reasonable suspicion that Mr. Tarango had engaged in or was about to engage in criminal activity.

The Court reasoned that warrantless searches and seizures are per se unreasonable unless one of the few jealously and carefully drawn exceptions to the warrant requirement applies.

“A Terry investigative stop is a well-established exception,” said the Court. “The purpose of a Terry stop is to allow the police to make an intermediate response to a situation for which there is no probable cause to arrest but which calls for further investigation . . . To conduct a valid Terry stop, an officer must have reasonable suspicion of criminal activity based on specific and articulable facts known to the officer at the inception of the stop.”

Additionally, the Court of Appeals reasoned that in evaluating whether the circumstances supported a reasonable suspicion of criminal conduct, it reminded that Washington is an “open carry” state, meaning that it is legal in Washington to carry an unconcealed firearm unless the circumstances manifest an intent to intimidate another or warrant alarm for the safety of other persons.

“Since openly carrying a handgun is not only not unlawful, but is an individual right protected by the federal and state constitutions, it defies reason to contend that it can be the basis, without more, for an investigative stop.”

Here, because the officers conducting the Terry stop of the Suburban had no information that Mr. Tarango had engaged in or was about to engage in criminal activity, the officers lacked reasonable suspicion.

Consequently, the Court of Appeals ruled that Tarango’s motion to suppress should have been granted. The Court also reversed and dismissed his firearm possession convictions.

Please contact my office if, a friend or family member face criminal charges. Similar to the excellent defense attorney in this case, experienced attorneys routinely research, file and argue motions to suppress evidence when it is gained by unlawful search and seizure and in violation a defendant’s Constitutional rights.

In State v. Whitaker, the WA Court of Appeals held that a trial court properly admitted 15 of 100 autopsy photographs over the objection of the defendant who was charged with aggravated murder. The probative value of the photographs in helping to illustrate the medical examiner’s testimony outweighed their prejudicial effect.

FACTUAL BACKGROUND

Mr. Whitaker was charged with helping his friend Mr. Anderson and several others kidnap and Ms. Burkheimer, who was Anderson’s ex-girlfriend. Whitaker helped to bind, hide, and transport Burkheimer. He helped to dig her grave, rob her, bury her, and destroy evidence
of her murder.

At trial, the court admitted 15 autopsy photographs during the testimony of the medical examiner. The medical examiner testified that around 100 photographs were taken during Burkheimer’s autopsy and that the 15 selected for trial showed the injuries to Burkheimer’s body, what the medical examiner looked at when he decided where the bullet exit and entry wounds were, and how Burkheimer’s injuries related to one another.

The jury found Whitaker guilty of premeditated first degree murder, with an aggravating factor of kidnapping and a firearm enhancement, and conspiracy to commit first degree murder. During the trial, Whitaker moved for a mistrial several times, alleging numerous errors were made during trial; one of the errors being whether the trial court improperly admitted the photographs of the victim’s autopsy.

COURT’S ANALYSIS & CONCLUSIONS

The WA Court of Appeals upheld Whitaker’s conviction and reasoned that accurate photographic representations are admissible, even if gruesome, if their probative value outweighs their prejudicial effect.

“A bloody, brutal crime cannot be explained to a jury in a lily-white manner.”

“The admission of autopsy photographs is in the sound discretion of the trial court,” said the Court of Appeals. “Photographs have probative value where they are used to illustrate or explain the testimony of the pathologist performing the autopsy. Unless it is clear from the record that the primary reason to admit gruesome photographs is to inflame the jury’s passion, appellate courts will uphold the decision of the trial court.” Furthermore, reasoned the Court, the law requires an exercise of restraint, not a preclusion simply because other less inflammatory testimonial evidence is available.

The medical examiner’s testimony explaining the photographs and his conclusions about Burkheimer’s injuries was straightforward and not inflammatory.

“There is no doubt that these photographs are disturbing,” said the court. “But this was a brutal crime, and the record does not show that the primary reason for admitting the photographs was to inflame the jury.” Rather, reasoned the Court, the photographs were admitted to support the testimony of the medical examiner. “The State did not offer all 100 of the photographs but instead selected 15 that best illustrated Burkheimer’s injuries,” said the Court. Therefore, the trial court did not abuse its discretion by admitting them.

With that, the Court of Appeals upheld Mr. Whitaker’s conviction and sentence.

My opinion? The admissibility of evidence is one of the most important battles in trial practice. Courts conduct balancing tests on this issue under Evidence Rules 401, 402 and 403. Under these evidence rules, judges can admit evidence which is relevant and probative as long as the evidence is also not prejudicial to the defendant’s case. Prejudicial evidence includes evidence which may inflame the passions of the jury. Understandably, however, the prejudicial effect can be outweighed by the probative value. In this case, the probative value of the medical examiner’s testimony outweighed the prejudicial effect these photos may have had on the jury.

Contact my office if you, a friend or family member are charged with a crime involving photographic evidence which could be prejudicial to the case.

Passage of the measure means that prosecutors will no longer have to prove law-enforcement officers acted with “evil intent” — or so-called “malice” — when considering whether to file criminal charges such as manslaughter. Washington is the only state with such restrictive language.

The measure passed with 60 percent of the vote statewide. In King County, support exceeded 70 percent.

According to Miletich, a spokesperson for the I-940 campaign said the win means “Washington becomes the first state in the nation to pass a police training and accountability measure in response to a national conversation about use of force and relationships between law enforcement and the communities they serve.”

I-940 requires proof that a reasonable officer would have used deadly force in the same circumstance and sincerely believed the use of deadly force was warranted. I-940 also requires de-escalation and mental-health training for police; requires officers to administer first aid to a victim of deadly force; and requires independent investigations into the use of deadly force.

At one point, state legislators passed a compromise bill earlier this year that addressed concerns raised by some law-enforcement organizations about certain wording in the initiative.

I-940 proponents accepted the bill, agreeing to keep the initiative off the ballot. But the state Supreme Court agreed with a challenger that the initiative couldn’t be modified by the Legislature and must be presented to the voters in its original form.

My opinion? Excellent. It’s about time. All of us want to ensure our families, communities and law enforcement officers as safe. But last year, more people were killed in encounters with law enforcement than in 45 other states, and almost a third of those killed were experiencing a mental health crisis. No officer wants to find themselves in this situation, but right now officers in Washington aren’t provided with enough training to help them de-escalate a potentially deadly encounter.

In State v. Ramirez, the WA Court of Appeals held that cell site location testimony is widely accepted throughout the country, and it is not error under ER 702, to allow an FBI agent with sufficient training and experience to testify regarding historical cell site analysis.

In addition to other pretrial motions, the defense also filed a motion to exclude a report and testimony from FBI Special Agent Jennifer Banks. The State named Special Agent Banks as an expert witness on historical cell site analysis. According to Banks’s report, records obtained from Mr. Ramirez’s cell phone provider placed him near the Broadway Square Apartments 10 minutes before the first 911 call was placed. The defense argued that Banks’s testimony should be struck based on late disclosure and because it failed to meet both the Fryestandard for admissibility and the criteria for expert testimony under ER 702.

The parties argued the pending pretrial motions on the morning set for trial. Prior to jury selection, the trial court also held a Frye hearing to determine the admissibility of Special Agent Banks’s testimony. She testified that due to being a member of the FBI’s Cellular Analysis Survey Team (CAST), she received training in deciphering cell phone records.

Agent Banks also described two components to her work. First, she interprets historic call detail records from cellular telephone providers in order to discern the location of cell towers activated by a particular voice call or text message. Second, she performs field tests of geographic areas to determine the strength of various cell towers. These tests involve driving through a location with a scanning device which uploads cellular frequencies in a given area to a computer program and plots signal strengths on an area map. Agent Banks testified that CAST agents had testified in approximately 400 courts throughout the country and that the CAST methodology is more widely accepted in the law enforcement community than any other cellular location method.

Defense counsel argued that Agent Banks’s testimony should be struck because her expert report was untimely and because the FBI’s mapping software had not been validated. The State made clear that it would not object to a continuance if Mr. Ramirez wanted more time to evaluate Agent Banks’s report. However, Mr. Ramirez insisted on moving forward with trial as scheduled. The trial court ultimately permitted the State to go forward with Agent Banks’s testimony, finding that the substance of the testimony was not novel.

TRIAL

During her testimony, Agent Banks explained how her CAST analysis applied to Mr. Ramirez’s case. Agent Banks said Mr. Ramirez’s call detail records included not only a code for each cell site antenna activated by Mr. Ramirez’s phone calls and texts, but also the 120-degree angle that the antenna had been pointed at the time of connection. By plotting the call detail data onto a map, Agent Banks determined Mr. Ramirez’s cell phone was in the area of the Broadway Square Apartments at 9:24 p.m. on November 1, 2014. This was approximately 10 minutes before the first 911 calls.

In addition to interpreting the call detail records, Agent Banks explained the field test she performed in connection to Mr. Ramirez’s case. To perform the test, Special Agent Banks drove through Spokane Valley, collecting cell tower frequencies with an FBI scanner. The FBI’s scanning software was then able to generate a map, showing the coverage strength area for each of the cell towers activated by Mr. Ramirez’s cell phone. The maps developed from the drive-through process largely corroborated the information indicated from the maps developed solely from the call detail records.

The jury found Mr. Ramirez guilty as charged. He appealed.

COURT’S ANALYSIS & CONCLUSIONS

Among other issues, Mr. Ramirez argued the trial court erred when it found Agent Banks’s cell site analysis admissible under Frye and ER 702. Mr. Ramirez complained that the software program used by the FBI is proprietary, and thus has not been subject to independent peer review. He also claimed Agent Banks’s testimony was unhelpful to the jury because the FBI cell site location methodology failed to account for imperfections in the cell transmission process, such as weather, obstructions, and network traffic.

The Court of Appeals discussed the Frye standard for determining the admissibility of novel scientific evidence. The standard has two parts. It asks (1) whether the underlying theory is generally accepted in the scientific community, and (2) whether there are techniques utilizing the theory that are capable of producing reliable results. Evidence not involving “new methods of proof or new scientific principles” is not subject to examination under Frye. The Court also reasoned that with respect to the Frye standard, cell site location testimony is not novel; and is widely accepted throughout the country:

“Historical cell-site analysis can show with sufficient reliability that a phone was in a general area, especially in a well-populated one. It also shows the cell sites with which the person’s cell phone connected, and the science is well understood.”

Furthermore, the Court reasoned that Agent Banks bolstered the reliability of her historical analysis by performing a drive-through analysis of the signal strength of the cell towers activated by Mr. Ramirez’s cell phone and evaluating the particular characteristics of the cell tower with which Mr. Ramirez’s phone connected, including its power and the direction its antennae were facing.

“The theories behind the drive-through test/cell tower strength testimony were sound,” reasoned the Court. It is not novel or uncommon to measure the strength of cell tower or radio frequencies. In addition, computer programs routinely generate maps that correspond to real-world data. “Concerns about the FBI’s software program did not present a reason for excluding Agent Banks’s testimony under Frye, said the Court.

Finally, the Court of Appeals decided the trial court also did not abuse its discretion in admitting Agent Banks’s testimony under ER 702. “It is undisputed that Agent Banks qualifies as an expert in historical cell site analysis,” said the Court. “Her testimony was also helpful to the jury.” The Court explained that Agent Banks did not overestimate the quality of her cell site analysis. Throughout her testimony, she made the jury aware of the imprecision of cell site location information. She cross tested the information obtained from the cell location records with information from her drive-through signal strength test. “Mr. Ramirez cannot identify any realistic risk that the jury would have been confused by the nature of this testimony. The evidence was therefore properly admitted.”

With that the Court of Appeals affirmed Mr. Ramirez’s judgment and sentence.

My opinion? Interesting decision. The admissibility of this evidence involves challenges which, in turn, involve very complex questions of physics, signal timing, reliability, etc. First, does the network reliably collect and report the underlying data, in particular the signal timing and power measurements? Second, is the enhanced historical cell sector analysis a reliable method to determine accurate location information for a target cell phone at a point in the past? A closely related third question is what scope of expertise required to establish the reliability of the data collected and the methods used to interpret that data.

Contact my office if you, a friend or family member are charged with a crime involving historical cell site analysis from a law enforcement officer.

The 6th Circuit Federal Court of Appeals‘ recent court decision United States v. Farradgives a very comprehensive analysis regarding the admissibility of Facebook records. In short, the Court held that (1) photographs from a Facebook account were properly authenticated by evidence that the photos in question came from a Facebook account registered to the defendant and the photos appeared to show the defendant in his own apartment, and (2) The Facebook photographs were self-authenticating as a business record.

Washington’s evidence rules are either identical to, or extremely similar, to the federal rules discussed in the opinion.

BACKGROUND FACTS

After serving time in prison for a previous felony, Farrad was released from federal
custody in January 2013. Farrad came to the attention of local law enforcement sometime after June 10 of that same year, when various confidential informants and concerned citizens evidently reported observing Farrad to be in possession of one or more firearms while in Johnson City, Tennessee.

Some time later, a Officer Garrison of the Johnson City Police Department used an undercover account and sent Farrad a friend request on Facebook. After Farrad accepted the friend request, Garrison was able to see more of Farrad’s photos. One photo in particular caught his interest: a photo that showed what appeared to be three handguns sitting on a closed toilet lid in a bathroom. The photo was uploaded on October 7, 2013.

Garrison brought the photo to the attention of Johnson City police officer and FBI task
force officer Matthew Gryder, who applied on October 25, 2013, for a warrant to search Farrad’s Facebook’s records. A federal magistrate judge granted the warrant. The warrant allowed execution “on or before November 6, 2013,” and the return executed by federal law enforcement indicates that the warrant was “served electronically” on Facebook on November 1, 2013.

The resulting data yielded a series of additional photos that were central to this case: some show a person who looks like Farrad holding what appears to be a gun, while others show a closer-up version of a hand holding what appears to be a gun.

While none of the photos shows a calendar, date, or one-of-a-kind distinguishing feature, the person in the photos has relatively distinctive tattoos, and some of the photos show, as backdrop, the décor of the room in which they were taken. Facebook records revealed that the photos had been uploaded on October 11, 2013.

On March 26, 2015, Farrad filed a pro se motion seeking an evidentiary hearing, dismissal of the indictment against him, and suppression of the Facebook photos on Fourth Amendment grounds. The magistrate judge assigned to Farrad’s case denied that motion on April 9, 2015, on the grounds that Farrad already had appointed counsel and the local rules prohibited a represented party from acting in his or her own behalf without an order of substitution. Farrad’s trial counsel did not renew Farrad’s motion.

In support of its assertion, the Government introduced a certification by a Facebook-authorized records custodian, who attested that the records provided by Facebook—including “search results for basic subscriber information, IP logs, messages, photos, and other content and records for Farrad’s Facebook identity were made and kept by the automated systems of Facebook in the course of regularly conducted activity as a regular practice of Facebook and made at or near the time the information was transmitted by the Facebook user.

In addition to disputing admissibility under Federal Rules of Evidence401, 402, 403, 404, 405, and 406, Farrad’s trial counsel argued that the photos, despite the custodian’s affidavit having been “done correctly under the federal rules,” were “hearsay within hearsay” and did not “authenticate who took the pictures, when the pictures were taken, by whom, at what time. All that the custodian could attest to, trial counsel emphasized, was that at some point these pictures were uploaded to what was allegedly Farrad’s Facebook account, the custodian could not testify as to who took the photos, when they were taken, where they were taken.

On June 15, 2015, the district court concluded that it had found no indication of a lack of trustworthiness and that the photos qualified as business records under Rules 803(6) and 902(11). It also determined that the photos were relevant.

The jury found Farrad guilty. He appealed his case to the 6th Circuit Court of Appeals.

ISSUES

Farrad raises seven arguments on appeal: (1) that there was insufficient evidence
introduced at trial to support his conviction; (2) that the Facebook photos should not have been admitted into evidence; (3) that Officers Hinkle and Garrison should not have been permitted to testify as experts; (4) that the district court should have granted Farrad’s motion for a new trial; (5) that Farrad did not in fact qualify as an armed career criminal under the ACCA; (6) that finding him to be an armed career criminal at sentencing violated his Fifth and Sixth Amendment rights; and (7) that the district court should have excluded the Facebook photos on Fourth Amendment grounds.

In this blog post, we focus on the issue of whether the Facebook photos were admissible at trial.

COURT’S ANALYSIS & CONCLUSIONS

Admissibility of Photos

The Court reasoned that like other evidence, photographs must be authenticated prior to being admitted into evidence. To satisfy this requirement, under federal evidence rule (FRE) 901, the person seeking to admit the evidence (proponent) must produce evidence proving that the item is what the proponent claims it is. This authentication rule requires only that the court admit evidence if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.

The Court further reasoned that under FRE 902, some items – like, apparently Facebook posts – are self-authenticating. In other words, they require no extrinsic evidence of authenticity in order to be admitted. This category of self-authenticating evidence includes “certified domestic records of a regularly conducted activity”—that is, a business “record that meets the requirements of Rule 803(6)(A)–(C), so long as properly certified by a custodian or other qualified person and so long as the evidence is subject to challenge by the opposing party.

“The question, then, is the central one: the authentication of the photos,” said the Court. “They appeared to show Farrad, his tattoos, and (perhaps most probatively) distinctive features of Farrad’s apartment, as confirmed by police investigation . . . The district court was correct to admit them.”

Fourth Amendment Suppression

After addressing the admissibility issue, the Court went on to reject Farrad’s claim that admitting the Facebook photos violated the Fourth Amendment. The Court reasoned that while a search made by a private entity acting at the direction of law enforcement agents must comport with the Fourth Amendment, Farrad has pointed to no authority or rationale to suggest that a date of execution similarly binds a third party’s certification of its records for evidentiary purposes. “This argument lacks merit,” said the Court.

“The bottom line in this case—that Farrad has been sentenced to serve 188 months in prison because the Government found Facebook photos of him with what appears to be a gun—may well raise a lay reader’s hackles. There are likewise aspects of Farrad’s trial and
conviction—the date issue, Officer Garrison’s testimony—that are at least debatably troubling from a legal perspective. Nevertheless, we are not empowered to grant relief based on arguments not made or where errors were harmless.”

With that, the Sixth Circuit affirmed Farrad’s conviction and sentencing.

My opinion? Today’s defense attorney must be proficient in the admissibility of social media evidence. And the answers are fairly straightforward. Although the general rule is that hearsay is not admissible, and that social media evidence is hearsay, some hearsay evidence is admissible under the business record exception. Clearly, anything and everything that social media outlets like Facebook produces – from profiles to posts – are business records, arguably.

This is a classic example telling us to watch what we post on Facebook and other social media. Information is private until its not.

In State v. Jameison, the WA Court of Appeals held that (1) Drive-By Shooting charges may not be maintained against an accused who merely retrieves a gun from the car in which he arrived to the scene of the homicide but crouches behind another car at the time he returns fire, and (2) the defendant’s arming himself and hiding behind a car from the bullets of the other shooter does not amount to accomplice liability with the co-defendant.

BACKGROUND FACTS

This prosecution arises from a confrontation between Kwame Bates and defendant
Lashawn Jameison, on the one hand, and Anthony Williams, on the other hand, during
which skirmish Williams fired his gun and killed bystander Eduardo Villagomez. A
video partially captures the confrontation and shooting.

On the night of January 17-18, 2016, Lashawn Jameison and Kwame Bates joined
a group of five hundred young adults at the Palomino Club in Spokane to celebrateMartin Luther King Day. Bates drove Jameison to the club in a white Toyota Camry
owned by Bates’ girlfriend, which car gains significance as events transpire. Bates
parked the Camry on Lidgerwood Street in front of a Department of Licensing building
adjacent to the club. A Chrysler parked behind the Camry on the street. We do not know
the time of night that Bates and Jameison arrived at the celebration.

The Palomino Club closed at 2 a.m. on January 18. As Lashawn Jameison and Kwame Bates exited the club at closing, another patron, Anthony Williams, shoved Sierra, a female friend of Bates. The shove began a deadly chain of events. As a result of the push, Bates and Williams argued. Jameison did not participate in the quarrel.

Williams jumped a metal fence bordering the club parking lot, retrieved a handgun from
a car parked in the adjacent Department of Licensing parking lot, and returned to the entrance of the club. Williams paced to and from the club building, the adjacent lot, and
Lidgerwood Street.

Both Kwame Bates and Lashawn Jameison, knowing that Anthony Williams possessed a firearm, returned to the white Toyota Camry and armed themselves. Both Bates and Jameison lawfully owned firearms. During this activity, other patrons of the Palomino Club departed the building and walked to their cars parked in the club parking lot, in the adjacent parking lot, and on the street.

Lashawn Jameison, with gun in hand, retreated and separated himself from Kwame Bates and Anthony Williams. Jameison hid at the rear of the Chrysler parked behind the Camry while Bates stood by a power pole near the Camry. Bates and Williams, with Williams then in the Department of Licensing parking lot, faced one another as Martin Luther King Day celebrants continued to walk to their cars. According to Bates, he “does not back down” from a fight as long as the fight is fair. Jameison crouched behind the Chrysler.

A friend of Anthony Williams drove the friend’s car into the parking lot. Williams stepped behind his friend’s vehicle and discharged his gun in Bates’ direction. The bullet missed Bates and struck Eduardo Villagomez, a bystander walking along the street. Villagomez slumped to the street. Tragically. an unsuspecting driver of a car drove over Villagomez’s stricken body. Villagomez died as a result of the bullet wound and the force of the vehicle.

After Anthony Williams’ discharge of gunfire, Kwame Bates ran from the power
pole and joined Lashawn Jameison behind the stationary Chrysler. Seconds after
Williams fired the first shot, Bates and Jameison stood, returned fire, and crouched again
behind the Chrysler. Jameison fired, at most, two shots toward Williams. Williams
returned additional shots toward Bates and Jameison. Bates rose again and returned fire as Williams entered the vehicle driven by his friend. The friend drove the vehicle from
the parking lot and club. Bates and Jameison entered the Camry and also departed the
neighborhood.

The State of Washington charged Lashawn Jameison with first degree murder by extreme indifference and, in the alternative, first degree manslaughter as the result of the
death of Eduardo Villagomez. The State acknowledged that Anthony Williams shot
Eduardo Villagomez but charged Jameison with accomplice liability. The State also
charged Jameison with fourteen counts of Drive-By Shooting as a result of Jameison’s
returning of gunfire. The fourteen charges arise from the presence of at least fourteen
club patrons in the vicinity at the time of the shooting.

PROCEDURAL HISTORY

Lashawn Jameison moved to dismiss the homicide charges pursuant to State v.Knapstad. Jameison emphasized that the video of the scene and law enforcement officers’ reports and affidavits demonstrated beyond dispute that Anthony Williams killed the decedent while Jameison ducked behind a car, shielding himself from Williams’ attack. Jameison added that, because he had not fired a shot by the time Williams’ bullet struck Eduardo Villagomez and because he himself was a victim of Williams’ violence, he could not be guilty of murder even as an accomplice. Jameison posited the same arguments for the alternative charge of manslaughter.

Lashawn Jameison also moved to dismiss the Drive-By Shooting charges for insufficient evidence of recklessness. In the alternative, he argued that all but one count should be dismissed because he fired only one shot. He based the latter argument on law enforcement’s discovering, at the crime scene, only one shell casing matching his gun.

The trial court dismissed the first degree murder and first degree manslaughter
charges on the basis, in part, that Lashawn Jameison did not cause the death of Eduardo
Villagomez. The trial court also ruled that the unit of prosecution for drive-by shooting
charges was the number of shots fired by Jameison. Because of a dispute of fact as to
whether Jameison fired one or two shots, the trial court dismissed all but two of the
fourteen drive-by shooting counts.

The State requested and this court granted discretionary review of the trial court’s
dismissal of some of the pending charges. After we accepted discretionary review, this
court decided State v. Vasquez, which delineates the elements of a Drive-By Shooting prosecution. We requested that both parties address Vasquez during oral argument.

LEGAL ISSUES

Whether an accused, who, in response to an antagonist retrieving a gun, also arms himself and hides behind a vehicle, suffers Accomplice Liability for Homicide when, without the accused shooting his firearm, the antagonist fires his gun and the bullet strikes and kills an innocent bystander.

Whether the same accused may be convicted of a Drive-By Shooting when he retrieves a gun from the car in which he arrived to the scene of the homicide but crouches behind another car at the time he returns fire.

COURT’S ANALYSIS & CONCLUSIONS

First, the Court of Appeals described the legal mechanisms of a CrR 8.3 Motion to Dismiss and a KnapstadMotion to dismiss and reasoned that ultimately the two motions are essentially the same.

Next, and interestingly, the Court of Appeals engaged a semi-esoteric discussion on how to handle criminal cases involving the accomplice liability of co-defendants who give more than one version of events.

“We struggle in the abstract with what assay to employ when adjudging what reasonable inferences we may deduce from established facts,” said the Court. “Therefore, we first comb for definitions and synonyms for our key word ‘inference.'” The Court elaborated that our state high court has defined an “inference” as a logical deduction or conclusion from an established fact. for example, State v. Aten refers to a “reasonable and logical” inference, again suggesting that a permissible inference must be logical.

“Based on these definitions, we must summon logic, common sense, and experience in surmising additional or circumstantial facts from already established or direct facts. We hope that our experience coincides with common sense and our common sense abides logic.”

The Court further reasoned that when evidence is equally consistent with two hypotheses, the evidence tends to prove neither. “We will not infer a circumstance when no more than a possibility is shown,” said the Court. “We are not justified in inferring, from mere possibilities the existence of facts.”

Moreover, the Court said that Washington law, if not the federal constitution, demands that inferences in the criminal setting be based only on likelihood, not possibility. When an inference supports an element of the crime, due process requires the presumed fact to flow more likely than not from proof of the basic fact. “Whether an inference meets the appropriate standard must be determined on a case-by-case basis in light of the particular evidence presented to the jury in each case.”

The Court concluded that we should not draw an inference that Lashawn Jameison agreed
to fight with Anthony Williams. “No evidence directly confirms that Jameison concurred in Williams shooting at Jameison’s direction. Experience, common sense and logic easily depict Williams acting on his own without any consent from Jameison or Bates.”

The Court of Appeals also said the State in essence portrays Lashawn Jameison and Anthony Williams as agreeing to a duel. “The totality of the undisputed facts, however, leads one to conclude that Jameison never consented to a duel,” said the Court. “Jameison retrieved his firearm only after Williams grabbed his weapon and in order to defend himself. He could have, but never did, shoot at Williams before Williams first shot in his direction.

HOMICIDE & ACCOMPLICE LIABILITY

The Court of Appeals described the accomplice liability statute. In short, a person is an accomplice of another person in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she: (i) solicits, commands, encourages, or requests such other person to commit it; or (ii) aids or agrees to aid such other person in planning or committing it; or (iii) his or her conduct is expressly declared by law to establish his or her complicity.

The Court of Appeals held that under Washington case law, an accomplice must associate himself with the principal’s criminal undertaking, participate in it as something he desires to bring about, and seek by his action to make it succeed. Presence and knowledge alone are insufficient, absent evidence from which a readiness to assist or an intent to encourage could be inferred, to support a finding of accomplice liability.

Consequently, the Court of Appeals held that Lashawn Jameison never sought to assist Anthony Williams. “He never directly encouraged Williams to shoot either himself or Kwame Bates,” said the Court. Furthermore, the Court reasoned that Williams wanted to shoot or wound Bates or Jameison. Jameison did not seek this goal. Jameison and Williams acted as antagonists. “They entered any fight from opposite poles.”

“We find that the conduct of Jameison in arming himself and hiding behind a car from the bullets of Anthony Williams ineptly fulfills the meaning of “encouragement” and his situation borders on victimhood. In turn, imposing criminal liability on Jameison conflicts with general principles of accomplice liability and disserves policies behind imposing accomplice liability.”

DRIVE-BY SHOOTING

On this issue, the Court of Appeals addressed what constitutes the “immediate area” of a motor vehicle that transported the shooter.

The Court reasoned that under Drive-By Shooting statute, a person is guilty of drive-by shooting when he or she recklessly discharges a firearm in a manner which creates a substantial risk of death or serious physical injury to another person and the discharge is either from a motor vehicle or from the “immediate area” of a motor vehicle that was used to transport the shooter or the firearm, or both, to the scene of the discharge.

The Court also turned to State v. Vasquez and State v. Rodgers in fashioning language to assist in measuring the “immediate area” in individual circumstances. In State v. Vasquez, the Court ruled that “immediate area” was either inside the vehicle or from within a few feet or yards of the vehicle. Also, the crime of Drive-By Shooting applies to a shooter who is either inside a vehicle or within easy or immediate reach of the vehicle.

“In State v. Rodgers, the Supreme Court held two blocks did not fall within the immediate area. In State v. Vasquez, we held that a distance of sixty-three feet did not qualify as the immediate area.”

Consequently, the Court reasoned that here, When Lashawn Jameison fired his responding shots, Jameison likely stood closer than sixty-three feet of the Toyota Camry, the car in which he traveled to the Palomino Club.

“We hold that Jameison did not stand within the immediate area,” said the Court. “The obstacle of an additional car and a telephone pole stood between Jameison and the Camry. The Camry was not within his immediate reach. Jameison stood more than a few feet or yards from the Camry.”

CONCLUSION

With that, the Court of Appeals affirmed the trial court’s dismissal of the murder and manslaughter charges and twelve of fourteen drive-by shooting charges brought against Lashawn Jameison.

My opinion? This is an excellent decision from the Court of Appeals. It is well written, and clarifies important definitions and legal terms applied to accomplice liability and Drive-By Shooting. Great opinion.

On October 27, 2015, Deputy Martin Zurfluh obtained a search warrant to search the Respondents’ property, including their residence, for evidence of possession of stolen property and utility theft. The search warrant was limited to a stolen power meter and its accessories. An arrest warrant for Witkowski was also issued.

On October 29, officers executed the search and arrest warrants. After this search, Deputy Zurfluh requested an addendum to the search warrant. In his affidavit, Deputy Zurfluh explained that after entering the Respondents’ residence, police found drug paraphernalia, ammunition, one locked gun safe, one unlocked gun safe, a rifle case, and surveillance cameras. Deputy Zurfluh knew that the Respondents were felons and were prohibited from possessing firearms or ammunition.

The search warrant addendum authorized police to search at the Respondents’ street address for evidence of unlawful possession of a firearm, identity theft, unlawful possession of a controlled substance, and unlawful use of drug paraphernalia. The warrant addendum defined the area to be searched for this evidence as the main residence, a shed, and any vehicles and outbuildings at the street address.

The addendum authorized the seizure of evidence including,

firearms, firearms parts, and accessories, including but not limited to rifles, shotguns, handguns, ammunition, scopes, cases, cleaning kits, and holsters

Surveillance Systems used or intended to be used in the furtherance of any of the above listed crimes.

Any item used as a container for #1.

Notably, the addendum did not identify either of the gun safes as items to be seized.

When executing the warrant addendum, officers opened the locked gun safe. They found 11 loaded rifles and shotguns with their serial numbers filed off, a handgun, a police scanner, a large quantity of cash, ammunition, and cameras.

The superior court suppressed the evidence found inside the gun safes under the Fourth Amendment. It ruled that the addendum to the warrant did not include the gun safes or containers for firearms and that gun safes are not “personal effects,” so that the search of the safes did not fall within the scope of the search warrant.

The Court reasoned that a lawful search of fixed premises generally extends to the entire area in which the object of the search may be found and is not limited by the possibility that separate acts of entry or opening may be required to complete the search. Thus, a warrant that authorizes an officer to search a home for illegal weapons also provides authority to open closets, chests, drawers, and containers in which the weapon might be found.

“Here, the warrant addendum listed the objects of the search as including firearms and firearm accessories,” said the Court of Appeals. “And Deputy Zurfluh testified that he suspected the close-to refrigerator-sized, locked safe contained firearms because he had found ammunition in the home.” The Court emphasized that Deputy Zurfluh also testified that in his experience, a tall, upright safe would be used to store guns. “Under the rule expressed in United State v. Ross, because one object of the search was “firearms,” the premises search warrant addendum authorized the search of the locked gun safe as an area in which the object of the search was likely to be found.”

Additionally, the Court of Appeals emphasized that numerous Washington cases have also expressed the Fourth Amendment rule that a premises warrant authorizes a search of containers in a residence that could reasonably contain the object of the search.

“In sum, federal and state precedent applying the Fourth Amendment show that when police execute a premises warrant, they are authorized to search locked containers where the objects of the search are likely to be found. Thus, the superior court here erred under the Fourth Amendment when it suppressed the evidence in the locked gun safe as exceeding the scope of the warrant addendum.”

With that, the Court of Appeals reversed the Superior Court’s suppression of the evidence and remanded back to the trial court for further proceedings.

Please contact my office if you, a friend or family member face criminal charges involving searches of persons, vehicles and property. Hiring competent criminal defense counsel is the first step toward getting charges reduced or dismissed.

In State v. Boisselle, the WA Court of Appeals held that the officers’ warrantless entry into a duplex was lawful as the officers were worried that someone might be injured or dead inside, the officers were unable to locate the individuals who were believed to being living in the duplex, the officers did not intend to conduct a criminal investigation inside the duplex, and from the time the officers arrived at the duplex, until entry, the officers individually and collectively worked to ascertain the situation.

BACKGROUND FACTS

In July 2014, Michael Boisselle encountered Brandon Zomalt, an old acquaintance. Zomalt told Boisselle that he was homeless, had nowhere to sleep, and that he needed assistance obtaining a food handler’s permit in order to secure a job. Boisselle offered to let Zomalt stay with him in his duplex unit. With Boisselle’s assistance, Zomalt received his food handler’s permit and began working at a nearby restaurant. However, Zomalt was fired after one week for fighting at work.

Zomalt was addicted to alcohol and methamphetamine. He also had a history of violence. Several people, including Zomalt’s mother and two of his former girlfriends, had been granted protection orders against him. After losing his job, Zomalt drank throughout the day. Boisselle did not feel safe around Zomalt and avoided him when possible.

The tension in the house culminated into a confrontation. Apparently, Zomalt began to behave strangely. He also drank heavily. One night, Boiselle and Zomalt were home. According to Boiselle, Zomalt held him hostage in their home and threatened Boiselle with a firearm. Later that night, Boiselle managed to reach the gun. He fired the weapon at Boiselle, apparently in self-defense. No witnesses summoned police or heard the firearm.

On September 1, 2014, South Sound 911 dispatch received an anonymous telephone call from an individual who reported that “somebody by the name of Mike” stated that he shot someone at the duplex. Shortly thereafter, the Puyallup Police Department anonymous tip line received a telephone call from an individual who reported that “Mike” had “shot someone” and “possibly killed him, and it was in self-defense.” Deputies Ryan Olivarez and Fredrick Wiggins were dispatched to the scene.

Olivarez and Wiggins knocked on the door of the duplex but received no response. There was, however, a dog inside that was barking aggressively. The deputies walked around the outside of the duplex and attempted to look inside, but all of the windows were closed and covered with blinds. There was a light on in the upstairs western bedroom. The deputies smelled a foul odor coming from the house and the garage. Olivarez thought that “something about it just seemed off’ and was concerned with “trying to figure out if someone needed help.” Olivarez and Wiggins then contacted the neighbors in order to gather more information. Two neighbors informed the deputies that they had not seen anyone coming or going from the duplex for about “four or five days.”

With no person apparently able to consent to a police entry of the unit and believing that they did not have a sufficient basis to obtain a search warrant, Adamson and Clarkson made a joint decision to force entry into the duplex. Clarkson broke through the front door. An animal control officer secured the dog. The officers then performed a security sweep of the duplex, looking for anyone who was hurt. Adamson and Clarkson searched the second floor of the duplex while Wiggins and Olivarez searched the first floor. The officers checked all of the rooms, looking in closets and other large spaces for a person or a body but ignoring drawers and other areas where a person could not fit.

Sergeant Clarkson believed that the smell was coming from inside of the garage and was consistent with a dead body. Once all of the rooms inside the duplex had been checked, deputies Wiggins and Olivarez forced entry into the garage from inside of the duplex. Once inside the garage, all four officers could see a large, rolled up carpet with a shoe sticking out and maggots pouring out of the bottom. Sergeant Clarkson opened the garage door using the automatic door opener and all four officers went around to the outside of the garage for a clear view of the carpet. From outside of the house, the officers saw an arm hanging out of the front end of the carpet. Clarkson told the other officers that “this is a crime scene now,” and that “it’s time we have to seal this off.” None of the officers collected evidence or touched the carpet.

On appeal, and among other issues Boisselle contends that the trial court erred by denying his motion to suppress the search of his home.

COURT’S ANALYSIS & CONCLUSIONS

The Court of Appeals reasoned that the United States Constitution prohibits unreasonable searches and seizures. “The Fourth Amendment does not prohibit ‘reasonable’ warrantless searches and seizures,” said the Court. Furthermore, the Court said the analysis under the Fourth Amendment focuses on whether the police have acted reasonably under the circumstances.

Additionally, the Court explained that Article 1, section 7 of the Washington Constitution is more protective than the Fourth Amendment, particularly where warrantless searches are concerned. “Article 1, section 7 provides that ‘no person shall be disturbed in his private affairs, or his home invaded, without authority of law,'” said the Court. The WA Constitution also prohibits any disturbance of an individual’s private affairs without authority of law. The Court said this language prohibits unreasonable searches.

However, the Court also explained that a search conducted pursuant to a police officer’s community caretaking function is one exception to the warrant requirement; and the community caretaking function was first announced by the United States Supreme Court in Cady v. Dombrowski. From there, subsequent Washington cases have expanded the community caretaking function exception to encompass not only the search and seizure of automobiles, but also situations involving either emergency aid or routine checks on health and safety.

Here, the court reasoned the police officers rightfully conducted a community caretaking search under the circumstances:

“In any event, the record establishes that the officers acted promptly given the circumstances. From the moment they arrived at the duplex, until entry, the officers individually and collectively began to ascertain the situation at hand. This included checking doors and windows to determine whether anyone was inside the duplex, contacting both the owner of the duplex and the individual listed on the lease in attempts to obtain consent to enter, questioning neighbors, and contacting animal control.”

The Court emphasized that, ultimately, the officers reached a point where two things were clear: (1) obtaining consent to enter was not possible as no person entitled to consent could be identified, and (2) there was nothing further the officers could do to discern the welfare of any person inside the unit absent entry. “At this point, the officers reasonably concluded that forcible entry was necessary to determine the need for and to render assistance. Given the circumstances, this was an immediate response to a likely emergency,” said the Court.

Finally, the Court reasoned the officers’ warrantless search of the duplex was justified pursuant to the community caretaking function exception as considered by a majority of the Supreme Court in State v. Smith.

“Accordingly, the trial court did not err by denying Boisselle’s motion to suppress,” said the Court of Appeals. With that – and following discussion of other issues – the Court of Appeals affirmed Mr. Boisselle’s conviction.

Please contact my office if you, a friend or family member is charged with a crime involving a search and seizure issue. Under the law, we are entitled to protections from unlawful searches of our homes, cars and persons.

In Thompson v. Copeland, the Ninth Circuit Court of Appeals held that a police officer uses excessive force when he points a gun at a suspect’s head and threatens to kill the suspect after the suspect, who was arrested for a felony, has already been searched, is calm and compliant, and is being watched over by a second armed deputy.

BACKGROUND FACTS

In December, 2011, Pete Copeland, a deputy in the King County Sheriff’s Office (“KCSO”), was on patrol in the City of Burien, Washington. After watching Lawrence Thompson commit “multiple traffic violations,” Copeland pulled him over. Thompson apologized to Copeland but failed to provide a driver’s license, although he did offer up some mail addressed in his name.

When Copeland ran Thompson’s identifying information, he discovered that Thompson had a suspended license for an unpaid ticket, that Thompson was a convicted felon, and that his most recent felony conviction was for possessing a firearm. Copeland decided to arrest Thompson for driving with a suspended license, and to impound Thompson’s car, as required by a City of Burien ordinance.

Copeland had Thompson exit the vehicle and patted him down for weapons. Finding none, Copeland radioed for backup, and had Thompson sit on the bumper of Copeland’s patrol car. Copeland then conducted an inventory search of Thompson’s vehicle. During his search, Copeland saw a loaded revolver sitting in an open garbage bag on the rear passenger-side floorboard. After seeing the gun, Copeland decided to arrest Thompson for Unlawful Possession of a Firearm.

Thompson continued to sit on the bumper of Copeland’s police cruiser, watched over by another deputy who had arrived for backup on the scene. Thompson was about 10–15 feet from the gun in the backseat of his car, and was not handcuffed. Copeland signaled to the deputy watching over Thompson, then drew his gun.

What happened next is disputed by the parties. Copeland claims he unholstered his firearm and assumed a low-ready position, with his gun clearly displayed but not pointed directly at Thompson. By contrast, Thompson claims that Copeland pointed his gun at Thompson’s head, demanded Thompson surrender, and threatened to kill him if he did not.

Copeland directed Thompson to get on the ground, facedown, so that he could be handcuffed. Thompson complied and was cuffed without incident. Copeland arrested Thompson for being a felon in possession of a firearm. The State of Washington charged Thompson with Unlawful Possession of a Firearm. However, the charges were dismissed after determining that the evidence against Thompson had been gathered in violation of the Washington State Constitution.

Thompson sued Officer Copeland and King County under 42 U.S.C. § 1983, alleging violations of his Fourth Amendment rights. Specifically, Thompson alleged that Officer Copeland used excessive force in pointing his gun at Thompson and threatening to kill him.

In recommending dismissal of this claim, the federal Magistrate Judge found that the degree of force used on Thompson was reasonable given that Officer Copeland was conducting a felony arrest of a suspect who was not secured, who was in relatively close proximity to a weapon, who was taller and heavier than him, and who had a prior felony conviction for unlawfully possessing a firearm. The Magistrate Judge concluded that Officer Copeland’s minimal use-of-force in effectuating Thompson’s arrest was objectively reasonable, and did not violate Thompson’s Fourth Amendment rights.

The Magistrate Judge also granted Copeland’s motion to dismiss under summary judgment on the basis of qualified immunity. Later, The federal district court adopted the Magistrate Judge’s Report and Recommendation, and dismissed Thompson’s claims with prejudice. Thompson appealed.

ISSUE

In the course of a felony arrest, may a police officer point a loaded gun at an unarmed suspect’s head, where that suspect had already been searched, was calm and compliant, was watched over by a second armed deputy, and was seated on the bumper of a police cruiser 10–15 feet away from a gun found in the suspect’s car? And if not, was the police officer entitled to qualified immunity from future lawsuits for police misconduct?

COURT’S ANALYSIS & CONCLUSIONS

The Ninth Circuit held that pointing a loaded gun at the suspect’s head in these circumstances constitutes excessive force under the Fourth Amendment, but that the officers here are entitled to qualified immunity because the law was not clearly established at the time of the traffic stop.

“Our analysis involves two distinct steps,” said the Court of Appeals. “Police officers are not entitled to qualified immunity if (1) the facts taken in the light most favorable to the party asserting the injury show that the officers’ conduct violated a constitutional right, and (2) the right was clearly established at the time of the alleged violation.”

Violation of a Constitutional Right.

The Court reasoned that Officer Copeland’s use of force in arresting Thompson was not objectively reasonable. Officer Copeland pointed the gun at Thompson’s head and threatened to kill him if he did not surrender. This type and amount of force can hardly be characterized as minor, reasoned the Court. Furthermore, Thompson had no weapon and had already been searched. He was sitting on the bumper of a squad car, watched over by an armed deputy. He was not actively resisting arrest or attempting to evade arrest by
flight.

“Reviewing the totality of the circumstances, the force used against Thompson was excessive when balanced against the government’s need for such force. In the end, pointing guns at persons who are compliant and present no danger is a constitutional violation.”

2. No Clearly Established Right.

Here, the Court reasoned that although the use of excessive force violated Thompson’s constitutional rights, Officer Copeland is entitled to qualified immunity because Thompson’s right not to have a gun pointed at him under the circumstances here was not clearly established at the time the events took place.

“Looking to the particular setup here, we cannot say that every reasonable officer in Copeland’s position would have known that he was violating the constitution by pointing a gun at Thompson,” said the Court of Appeals. “Thompson’s nighttime, felony arrest arising from an automobile stop, in which a gun was found, coupled with a fluid, dangerous situation, distinguishes this case from our earlier precedent.”

The Court reasoned that, more specifically, Copeland was conducting a felony arrest at night of a suspect who was not handcuffed, stood six feet tall and weighed two hundred and sixty-five pounds, was taller and heavier than Copeland, and had a prior felony conviction for unlawfully possessing a firearm. “Although Thompson was cooperative, the situation was still critical in terms of potential danger to the officers, especially given that a loaded gun was only 10–15 feet away,” said the Court. “Copeland did not violate a “clearly established” right as that concept has been elucidated by the Supreme Court in the excessive force context.”

The Court of Appeals concluded that because the law was not clearly established within the parameters dictated by the Supreme Court, Officer Copeland was entitled to qualified immunity. Therefore, the lower district court’s grant of summary judgment was AFFIRMED.

3. Dissenting Opinion.

My opinion? Respectfully, I disagree with the Court of Appeals’ majority decision and agree with Justice Christen’s dissenting opinion.

“This decision squarely conflicts with the clear directive our court issued in Robinson v. Solano County, a case involving facts that, if distinguishable at all, posed a greater threat to officer safety,” said Justice Christen. Ultimately, she reasoned that Robinson recognized the critical distinction between pointing a gun at someone’s head and holding it in the “low ready” position.

“Deputy Copeland was justified in displaying some degree of force, but accepting the allegations in the complaint as true, he unquestionably used excessive force when he aimed his gun at Thompson’s head and threatened that if Thompson moved, he’d be dead.,” said Justice Christen. “Because that rule was clearly established long before Thompson was arrested, I respectfully dissent.”

Please contact my office if you, a friend or family member believe police used excessive force in any given situation. Police officers have difficult tasks. In recent years, however, the use of force by police officers making traffic stops has flared into a national debate of renewed importance. It’s imperative to seek legal counsel with knowledge and competence in this debate, and who may recover damages from the police officer’s liability.